Court name
Supreme Court of Turks and Caicos Islands
Case number
CR-APM 7 of 2000

Regina v. Parker (CR-APM 7 of 2000) [2000] TCASC 3 (02 August 2000);

Law report citations
Media neutral citation
[2000] TCASC 3
Coram
Ground, CJ

 

Case Name:

R. v. Parker

Between

Norman Parker, appellant, and

The Queen, respondent

[2000] TCA J. No. 8

No. CRAPM 7/00

Turks Caicos Supreme Court

Ground C.J.S.C.

August 2, 2000.

(9 paras.)

Appearances:

L. Rodney for the appellant.

E. Welch for the respondent.

JUDGMENT

1              GROUND C.J.S.C — The primary point made by the appellant in this case is that the learned Chief Magistrate did not warn himself of the dangers of convicting on the evidence of an accomplice.

2              Was that necessary? The facts were that the appellant and the sole witness to the alleged offence were both night watchmen employed to guard a ship which had been caught fishing illegally. It carried a cargo of fish. In the early part of the night someone stole a quantity of that fish. The witness remained at the scene, and when the Deputy Chief Fisheries Officer came to check at about 9 p.m. and discovered that the seal on the hold had been tampered with, eventually told him that the appellant had sold it to a number of people who came in trucks to the dock. The appellant was not at his post then, but later said that he had gone to look for the Deputy Chief Fisheries officer to report the witness for stealing the fish, but had been impeded by a flat tyre and so had gone home for the night. The next day, however, he went to the police station and reported the theft.

3              In such a case it was an obvious possibility that the main witness had himself either committed the offence alone, or been an accomplice to its commission. Had the Magistrate thought that he had committed the offence alone there would have been no room or need for an accomplice warning. He would necessarily have disbelieved the witness and acquitted the appellant. On the other hand, if he was sure that the appellant had committed the offence alone, that would have ruled out the witness's involvement and he would not be an accomplice.

4              The question of whether or not a witness was or might be an accomplice is a question for the tribunal of fact. If that tribunal is a jury then the judge has to direct them that if they think that the witness might be an accomplice, then it is dangerous to convict on his evidence unless it is corroborated. The reason it has to be done that way is because the Judge giving the direction does not know how the jury will find on the question of accomplice or not. The position is different if that tribunal is a Magistrate. He will know whether or not he thinks the witness might be an accomplice. If he is satisfied that the witness is, beyond reasonable doubt, not an accomplice then no question of warning himself arises. It is only if he in fact thinks that the witness might be an accomplice that he has to give himself the warning about the danger of relying upon the evidence of an accomplice.

5              In this case the learned Chief Magistrate was very aware of the possibility that the witness might have been the culprit. In his written reasons he recorded:

"The Court was very aware that the eyewitness was also charged by the police at the same time for the said offence and therefore treated his testimony to the closest scrutiny."

6              However, at the end of the day the learned Chief Magistrate preferred the witness's evidence:

"The Court accepted his testimony as that of a witness of truth. His manner and demeanour on the witness box was impeccable. The Court believed him beyond a reasonable doubt."

It necessarily follows from that that the learned Chief Magistrate was satisfied beyond reasonable doubt that he was not an accomplice, so that the need for any direction to himself as to what to do if he was an accomplice simply did not arise.

7              It was also said that the learned chief Magistrate misdirected himself as to the weight to be given to the fact that the police had withdrawn the original charge against the witness. He said in his written reasons:

"The said Ingham having no criminal charge hanging over his head had no interest in lying on the appellant."

Although the phrasing might be open to objection the witness may have had innumerable other reasons for lying on the appellant, and may have retained a desire to exculpate himself even if he could no longer be prosecuted it is plain the learned Chief Magistrate had in mind the practice that before an accomplice or co-accused may be called as a witness the matter against him should have been disposed of, one way or the other, so as to remove any continuing inducement to ingratiate himself with the prosecution: see R v Pipe 51 Cr. App. R. 17, CA. In context, therefore, the observation simply means that the witness had no continuing interest in acquitting himself from a criminal charge. To that extent it was correct, and was something that the learned Chief Magistrate could properly take into account in weighing the evidence.

8              Otherwise the case was a compelling one against the appellant. He was not at his post when the Deputy Chief Fisheries Officer made his inspection. It was apparent from his cross-examination that he was not expecting that inspection or that the Deputy Chief Fisheries Officer would return before the morning. His explanation about getting a flat tyre was implausible in the extreme, not because it might not have happened, but because there was no reason why it should stop him reporting the matter to the police that night, either by telephone or by getting a ride to the police station.

9              As to sentence, the appellant has a record for offences of violence, but no prior convictions for offences of dishonesty. On the other hand he had been placed in a position of trust, which he abused in a cynical way. That weighed heavily with the learned Chief Magistrate, and rightly so. However, although an immediate sentence of imprisonment is always called for in such cases, I think that 12 months was too long for a first time offence of theft. Nor was the amount involved great it was charged at $900, and although it is plain that that was a fairly rough estimate, he cannot be treated as having stolen property worth more than the amount the prosecution has chosen to charge. I have reviewed the cases in Current Sentencing Practice at section B6 1.3A (Theft by Employees and Persons in Positions of Trust), and for the amount and circumstances involved I consider that the appropriate sentence was one of six months. I therefore quash the sentence of one year's imprisonment and impose a term of six months immediate imprisonment. Otherwise the appeal is dismissed.

GROUND C.J.S.C.